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Detention under SOSMA

about 3 years ago DenningMR



This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever. All articles have been scrutinized by a practicing lawyer to ensure accuracy.

Photo credit: Huffington Post

For today, we shall just focus on the provisions for detention under Security Offences (Special Measures) Act 2012 (SOSMA), as set out in sections 4 (1), 4 (4) and 4 (5) and compare it with provisions of the Criminal Procedure Code (CPC).

Section 4 (4) SOSMA provides for the ?standard? police detention of 24 hours for the purpose of investigation. This is pretty similar to what is seen in the CPC. Something most of us are aware of.

However, SOSMA allows for a further detention and this is a bone of contention with most of its opponents. So what is this further detention all about? Let?s have a look.

Section 4 (5) of SOSMA reads ?? a police officer of or above the rank of Superintendent of Police may extend the period of detention for a period of not more than twenty eight days, for the purpose of investigation.?

So now you only need for a police officer of or above the rank of a Superintendent of Police to say you need to be further detained and off you go for another 28 days.

In comparison, Section 28 of the CPC empowers the police to only detain an individual for no more than 24 hours in order to assist with investigations and may further remand them for a maximum of 14 days with a Magistrate?s order, Section 117 of the CPC.

After the 14 days remand, the police either releases or charges the individual.

So we see that under SOSMA a person can be detained without trial for up to an initial period of 29 days. The detention is at the discretion of the police. How does the police exercise this discretion? Section 4 (5) of SOSMA does not seem to state anything about it.

Section 117 (1) of the CPC reads: Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 28 and there are grounds for believing that the accusation or information is well founded the police officer making the investigation shall immediately transmit to a Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case and shall at the same time produce the accused before the Magistrate.

With Section 117 of the CPC there are safeguards for the individual arrested. The police need to ensure ?there are grounds for believing that the accusation or information is well founded? and then ?transmit to a Magistrate a copy of the entries in the diary?. The Magistrate performs a judicial function when considering the application for remand. It is not administrative in nature. Magistrates have on many instances rejected the application for remand by the police.

These safeguards are not present under SOSMA.

Now coming to the 28 days remand under SOSMA, it is also unclear if Section 4 (5) allows for the 28 days detention to be renewed indefinitely.

It must be said that Section 4 (5) of SOSMA is vague, does it then allow for the courts to apply the principles of a Magistrate?s remand or will it be said that, SOSMA places the power to detain, solely, in the hands of the police? Where is the check and balance? Who will police the police?